Cazenovia College sues village in state supreme court over proposed fence

Cazenovia College has filed suit in New York State Supreme Court asking a judge to overturn the village zoning board’s April decision to require full site plan review for a proposed perimeter fence around the college’s athletic complex rather than issuing a simple building permit.

The argument, which has been ongoing for nearly one year, has become and passionate — and sometimes personal — issue between the college, its neighbors, the village zoning enforcement officer and the village government, with accusations of unneighborly conduct, acting in bad faith, mendacity, incompetence and even illegalities being asserted.

“I’m not surprised, but we were hoping we had dodged a bullet,” ZBA Chair Phillip Byrnes said of the suit. “It’s in the hands of the powers above us now.”

The “bullet,” or the need to continue to argue the issue and pay further attorneys’ fees, was the fact that the college had 30 days to file its appeal — called an Article 78 — with the state supreme court, which it did on the 30th day, May 17, said Mayor Kurt Wheeler.

“There will be substantial expenditure [to the village] for this unfortunately,” Village Attorney Jim Stokes told the village board during a May 28 special meeting.

“I think that’s what [the college] had in mind,” said Trustee Amy Mann.

For their part, college administrators maintain their position that the college is being unfairly singled out by the village.

“Cazenovia College’s stance on the matter has not changed. We believe that the village is not applying the zoning code fairly and specifically targeting the college. Our desire to fence in our athletic complex property is supported by case law, hence our decision to proceed in court,” said Cazenovia College President Mark Tierno.

The fence issue, which has been ongoing since summer 2012, concerns whether or not the village’s Zoning Enforcement Officer, Bill Carr, properly denied the college’s permit application to build a 1,420 linear feet fence (six feet in height and made of chain link with black vinyl coating) spanning the eastern, northern and western edges of the its Schneeweiss Athletic Complex.

Carr determined in July 2012 that the fence was not an independent project but rather a part of the college’s 2011-12 $1 million turf field project, and therefore required further site plan review. In November 2012, when pressed for a written decision by the college, Carr said the college acted in bad faith — if not illegally — in separating the fence from the turf field project, an action he declared to be “segmentation,” or submitting separate parts of the same project for zoning approval individually instead of as a whole as a way to prevent a possible negative outcome of a site plan review.

The college rejected that ruling, declaring the fence was an independent project unconnected to the turf field necessitated to protect its investment in the turf field from the continual trespass of its neighbors and other village residents. The college also said that since the village had allowed the college to erect multiple other fences on its property in the past it must allow this fence as well

The college appealed Carr’s decision to the ZBA on Feb.1, 2013, and the board held public hearings on the issue on Feb. 5 and March 26. Numerous village residents — primarily college neighbors — turned out at both public hearings to oppose the fence. Some filed letters and even legal briefs opposing the project to the board. One of the major arguments against the fence asserted that it was merely another step toward the college turning the simple turf field into an oversized sports stadium in the heart of the village.

On April 18, the ZBA issued a 29-page determination and resolution declaring that a fence such as the college wants to erect is a structure, a structure requires a building permit and the village code requires site plan review by the village planning board for all land use activities in the village unless exempted under the code, which the college’s project is not. The board also declared that the college is in a C2 College zoning district, and, under the code, “all uses” located in the C-2 College District are required to undergo site plan approval by the planning board.

The board also rejected the college’s argument that since it must allow this fence to be built because previous fence construction had been allowed. The board said those fences were not comparable to the currently proposed fence in size and scope, were internal to college property and not on the property edge, and therefore the comparison was not applicable.

In their petition to the state supreme court, college attorneys Kevin M. Bernstein and Kathleen M. Bennett, of the Syracuse law firm Bond, Schoeneck & King, requested the court to declare the ZBA decision “null and void,” to direct the ZBA to find that the installation of a perimeter fence does not require site plan approval, to direct the ZEO to issue a building permit for the fence and for “such other and further relief as the court may deem just and proper.”

The college’s 19-page petition to the court stated that:

—The ZBA acted outside of its jurisdiction by raising issues in its decision that were not part of the ZEO’s interpretation of the village code or of the college’s appeal of that interpretation.

—The ZBA improperly applied provisions of the village code to determine that the college’s permit request for the fence required a full site plan review. The suit alleges that the fence is not a “structure,” but is an “accessory structure” and therefore is exempt from site plan review. It also states that the ZBA’s logic that the fence is an aspect of the previous turf field project “is a reach — at best,” and “flawed logic” that would require any new accessory structure in the village to be tied to previous projects “no matter how tenuous the connection.”

—The ZBA unlawfully extended the provisions of the zoning code against the college by concluding that other relevant sections of the zoning regulations must be considered in such a case where a fence would control access to a facility that had previously undergone an exhaustive site plan review — or that the village code “could not be read in a vacuum.”

—The ZBA’s finding is contrary to its own precedents for issuing building permits to construct fences without requiring site plan review.

—The ZEO’s decision based on his determination the fence was a component of the college’s overall athletic field development plan was “arbitrary and capricious because his conclusions are speculative and based only on supposition.”

—The ZEO has no “authority or expertise” to provide legal interpretations of state law, specifically the State Environmental Quality Review Act. The petition stated that the turf field project and the perimeter fence are projects independent of one another, and therefore the ZEO’s determination that the fence was an act of “segmentation” was “clearly erroneous and based on a fundamental misunderstanding of the concept of segmentation.”

The petition alleges that all the above reasons are “arbitrary and capricious” and “contrary to law” and therefore the ZBA’s determination must be overturned.

The case is scheduled to be heard before a special term of the state supreme court on Friday, Aug. 23, at the Madison County Courthouse in Wampsville. That ruling may not be the final word on the issue, however, as that decision could then be appealed to the appellate court level in Albany.

Jason Emerson is editor of the Cazenovia Republican. He can be reached at editor@cazenoviarepublican.com.